Supreme Court Upholds Queer Couple’s Right to Cohabit, Leaves Marriage Recognition to Legislature
In a landmark decision on October 17, 2023, the Supreme Court of India has refrained from granting legal recognition to queer marriages, deferring this matter to the legislature. However, the unanimous consensus among the judges on the bench is that queer couples possess the fundamental right to cohabit without facing any threats of violence, coercion, or interference.
The five-judge bench, presided over by Chief Justice of India DY Chandrachud and composed of Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, commenced the hearing of these crucial petitions on April 18, 2023.
The case revolves around the discrimination faced by the LGBTQIA+ community in India and their demand for legal recognition of their relationships through marriage.
Here petitioners argue that the current legal regime excludes them from the institution of marriage, violating their right to equality.The contentions from the petitioners include the claim that they face discrimination on a formal and visible level, and that the state should treat them on par with the heterosexual community.
According to the Petitioners “The discrimination experienced by individuals in the LGBTQ+ community are severe. They face various forms of discrimination in different aspects of their lives, including education, employment, healthcare, housing, and public spaces. In professional environments, they may be denied job opportunities, excluded from office gatherings, and passed over for promotions. LGBTQ+ individuals also face challenges in finding housing due to discrimination from landlords. In healthcare, they may not be treated in a dignified manner and face administrative barriers and a lack of knowledge about gender-related diseases. Public spaces, such as washrooms and security checkpoints, are often segregated based on a strict gender binary, which can lead to misgendering and discomfort for transgender individuals.
The discrimination faced by the LGBTQ+ community is not only a result of social morality but also a lack of effort from the state to sensitise the public about queer rights. Overall, the discrimination can have significant negative impacts on the mental health and well-being of LGBTQ+ individuals.”
On the other hand, the respondents oppose the petitioner’s arguments and highlight the limitations on the court’s power to issue positive directions for the enforcement of such rights. They argue that there is no binding precedent on the question of marriage equality for same-sex/LGBTQ+ couples.
The judgments in the case differ among the judges.Three judges of the five-judge Constitution bench disagreed with the Chief Justice of India on adoption rights for LGBTQIA people but agreed that the Special Marriage Act, 1956 (SMA) cannot be interpreted in such a manner so as to enable marriage between queer persons and observed it is within Parliament’s ambit to change the law for validating such union.
It is noted that previous decisions of the court, including the Navtej Singh Johar case, did not specifically address the question of marriage equality for same-sex/LGBTQ+ couples.
The court also discusses the issue of whether there is a fundamental right to marry here in India and it is noted after referring to various legal case studies that the Constitution of India does not explicitly guarantee the right to marry.
This verdict holds significant implications for LGBTQ+ rights in India, as it underscores the need for legislative action to provide legal recognition to same-sex marriages. While the Supreme Court refrains from making a final determination on marriage recognition, it sends a clear message about the right of queer couples to live together without facing discrimination or threats.
This decision is likely to initiate further discussions and advocacy efforts surrounding LGBTQ+ rights, both in the legal and public spheres. It will be interesting to see how this judgment influences future legislative developments and the societal landscape in India.
As the legal landscape evolves, the question of same-sex marriage recognition will continue to be a topic of paramount importance and scrutiny in the nation.
